On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1932-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 20, 2006
Before Judges Cuff, Winkelstein and Messano.
Plaintiff, Lisa Barton, appeals from the grant of summary judgment dismissing her complaint against defendant, Mount Holly Township (Mt. Holly). After thoroughly reviewing the motion record, and for the reasons set forth below, we now reverse and reinstate plaintiff's complaint.
In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div. 2006). A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. We decide first whether there was a genuine issue of material fact. Atlantic Mutual Ins. Co., supra. If there was not, we then decide whether the lower court's application of the law was correct. Id. at 231. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.
On August 24, 2000, plaintiff attended a seminar at the Burlington County Courthouse in Mt. Holly. As she walked back to her car from the courthouse, she crossed a pedestrian bridge that led to the parking lot. She stepped down from the surface of the bridge onto the adjoining sidewalk, fell and sustained injuries. The height of the step ranged from nine to ten and one-half inches. There were no signs warning of the step nor handrails present, and the actual sidewalk below sloped away at an angle from the bridge.
The bridge was constructed in 1966 along with two other bridges that led to other parking areas around the courthouse. It is owned and maintained by Mt. Holly. In August 1995, Mt. Holly hired Richard A. Alaimo Associates (Alaimo), an engineering firm, to evaluate the structural conditions of the three bridges.*fn2 Alaimo also served as the Mt. Holly's engineer, from 1993 to 2000. Alaimo prepared a report that recommended Mt. Holly implement a cycle of complete inspections of the bridges; it also recommended the repair of some concrete damage, including the general area of the step, resulting from wear, tear and aging of the bridge and sidewalk surfaces. In January 1996, Alaimo prepared the "Specifications, Proposal and Contract Documents for Maintenance, Painting and Concrete Repair of Three Bridges, Contract No. 1196-5A." Loftus Construction, Inc. (Loftus) was awarded the contract to perform the repair work on the bridge and sidewalk in question.*fn3
Loftus was required to repair sliding plate joints at each end of each bridge, repair the deck, curb and sidewalk of each bridge, and repair cracks on the bridges' substructures as directed by Alaimo. The contract also incorporated appended plans prepared by Alaimo that included a "Step Repair Detail" plan that specified the height between the existing step and the existing sidewalk to be "six inches ."
Plaintiff's expert engineer opined that the step height of nine or more inches clearly violated various safety standards. He further opined that the contract plans indicated the existing six inch step height was to be preserved but it was not. He also indicated that despite the unsafe height of the step, various safety precautions could nonetheless have been installed at modest expense.
The motion judge granted Mt. Holly summary judgment relying upon various provisions of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3. While accepting the condition to be dangerous, she concluded that Mt. Holly was entitled to the general immunity provided by the TCA because plaintiff failed to demonstrate defendant acted in a "palpably unreasonable manner." See N.J.S.A. 59:4-2. She also noted that there was little in the record to support the conclusion that Mt. Holly had actual or constructive notice of the condition. Ibid.; see also N.J.S.A. 59:4-3. Lastly, she concluded that Mt. Holly was ...